Shubert Theatrical Co. v. Ziegfeld

This is a motion made to dismiss an appeal for failure on the part of the appellant to make and serve a case on appeal from a judgment of the City Court. It appears from the moving papers that a judgment was rendered herein in favor of the plaintiff on May 20, 1907. The defendant appealed on May 27, 1907, and on September 21, 1907, served his proposed case. On November 2, 1907, the plaintiff served proposed amendments, and since that time nothing has been done in the way of having the case settled or filed, and the plaintiff applies to this court to have the appeal dismissed upon that ground.

The only authority given this court to dismiss appeals from the City Court, except such as it may have by reason of its inherent powers, is conferred by rule 3 of the rules for the hearing of appeals from the City Court and from the Municipal Court, made by the Appellate Division, governing the practice in the Appellate Term. That rule provides that:

“In case the appellant does not cause the return to be filed with the clerk of the Appellate Term and print and serve three copies thereof upon the attorney for the respondent * * * within ten days after the settlement of the case on appeal * * * the respondent may move,” etc.

*802It would seem, therefore, that the proper practice would be that any motion to be made respecting the 'case prior 'to its settlement by the trial judge should be made in the lower court and not in this court. Rule 33 of the general rules of practice declares that, “if a party shall omit to make a case within the time, above limited [see rule 32], he shall be deemed to have waived his right thereto,” etc., and this is equivalent to an abandonment of the appeal (Fromme v. Poerschke [Sup.] 95 N. Y. Supp. 525); and rule 35 provides that “where a party makes a case * * * he shall procure the same to be signed by the judge or referee and filed within ten days after it shall have been settled or it shall be deemed abandoned, unless the time is extended by order.” These rules give the court below power in proper cases to grant an order declaring an appeal abandoned. Such an order would not preclude the appellant from prosecuting the appeal upon the judgment roll alone; but, if then he failed to serve the printed papers necessary for the prosecution of the appeal, the respondent could move for its dismissal. True v. Sibley, 61 N. Y. St. Rep. 200, 29 N. Y. Supp. 704.

It follows that the motion in this case must be dismissed. • All concur.